Marriages are much more difficult to navigate when you don’t know you’re married.
How is this possible, you ask? How can you be married without knowing it?
The answer is a single, simple phrase: common law marriage.
Romantic relationships are complicated enough as it is. Marriage only adds another layer of complexity. If you want to know whether or not you need to worry about that additional complexity, here’s everything you need to know.
What is a Common Law Marriage?
A common law or informal marriage is a relationship in which two people are functionally married but not legally married.
Maybe they live together. Maybe they have a family together. Maybe they share the bills.
Whatever the exact nature of the relationship is, it plays out like a traditional marriage. The only difference is that they never had an official, legally binding ceremony.
What Constitutes a Common Law Marriage?
Like a traditional marriage, there are a few criteria that a relationship must meet for it to be considered a common law marriage. These criteria are best summed up as follows:
- Intention—Both parties in the relationship willingly agree that the relationship is committed and long-term.
- Cohabitation—Both parties must have lived together for a set amount of time. They must also continue to live together.
- Legality—Both parties must have the legal right to marry one another. The main stipulations here are that both parties are 18 years of age or older, mentally competent, and unmarried to anyone else.
- Presentation—Both parties must present their relationship as a marriage. This means that they have joint financial accounts, share a last name, and call each other “husband/wife/spouse/etc.”.
The criteria for defining a common law marriage differ from state to state. For example, in Colorado, there isn’t a time limit for establishing a common-law marriage. Whether the people in that relationship have been together for 5 months or 5 years, the same stipulations apply.
This counters the myth that a common law marriage kicks in after 7 years of cohabitation. While it’s true that both members of the relationship must prove that the relationship has existed for longer than, say, one night, no relationship is automatically labeled a common law marriage just because its members have lived together for 7 years.
There’s also the fact that not all states recognize common law marriage. At present, only Washington, D.C. and the following 15 states have any formal recognition of the practice:
- Alabama (if the common law marriage existed before 2017)
- Georgia (if the common law marriage existed before 1997)
- Idaho (if the common law marriage existed before 1996)
- New Hampshire
- Ohio (if the common law marriage existed before 1991)
- Oklahoma (if the common law marriage existed before 1998)
- Pennsylvania (if the common law marriage existed before 2005)
- Rhode Island
- South Carolina
Note that, in the specified states, common law marriage was disallowed after a certain year. In other words, they are no longer valid in those states.
Benefits of a Common Law Marriage
The primary benefit of a common law marriage, especially in comparison to a traditional marriage, is the lack of paperwork on the front end. There is no need for a marriage license, proof of premarital counseling, or any of the other documents often associated with traditional marriage.
Even without this documentation, though, a couple in a common law marriage can reap almost all of the same rewards as a traditionally married couple. These can include tax breaks and shared insurance. In the event that the relationship ends, the parties can also file for property division, alimony, and child support.
Downsides of a Common Law Marriage
Based on this information, it seems silly for anyone to get married. A common law marriage achieves the same results without any of the tedious bureaucracy, so why not opt for it instead?
The reality is that common law marriages aren’t as simple or straightforward as they appear. Yes, couples can enter into a common law marriage without any prerequisite paperwork, but that’s the only real benefit.
First, common law spouses suffer from the same type of discrimination as same-sex couples in civil unions (i.e., non-state-sanctioned marriages). This pops up most often when one of the people in the relationship must be hospitalized. Unlike a traditional spouse, common law spouses aren’t immediately recognized as next-of-kin.
In other words, even if you share insurance with your common law spouse, you may not be able to be with them in events of hospitalization.
Related to this, if your common law spouse has an inheritance, you won’t necessarily be the beneficiary. Unless your spouse specifically listed you as the inheritor in their will, their assets will immediately go to their next blood relation. Even if the state recognizes your relationship as a marriage in some senses, it won’t recognize you as an inheritor the way it would with a traditional spouse.
Second, if you decide to separate, you’ll still have to go forward with divorce proceedings. Even though you avoided all of the nasty paperwork at the start of the “marriage”, you’ll be held responsible for divorce paperwork should the relationship end.
This includes proving to the court that your relationship constituted as a common law marriage. Because common law marriages don’t require marriage certificates or other legal evidence, establishing this proof can cost a lot of time and money.
How to Avoid Legal Woes in the Future
Considering all of this, most legal professionals would suggest that a traditional marriage is a far better option than a common law marriage. There may be more work required on the front-end, but you’ll save yourself a lot of trouble should the worst occur.
If you still decide to move forward with a common law marriage, though, it is vital that you create a living will. You should also specify your common law spouse as your beneficiary for any health insurance, life insurance, and retirement benefits.
Whether you’re in a traditional marriage, a common law marriage, or no relationship at all, it’s important that you protect your assets. For more information on how to do that, check out the rest of our articles.